fault had no part in it. [Citations omitted]." Id.
7. Normal depreciation constitutes "wear and tear". What is normal "must be responsive to practices in the service for which the vessel is intended. [Citations omitted] . . . The effects of negligence are not wear and tear, and they do not become wear and tear merely because they may be anticipated. [Citations omitted]." Moran Towing Corp. v. M. A. Gammino Construction Co., 363 F.2d 108, 114 (1st Cir. 1966).
8. In the instant case, Compass delivered the tug Magic in good and seaworthy condition to Calore, which returned her after the voyage, in very poor condition. Calore has not been able to rebut the presumption of negligence by showing that its negligence did not cause the deterioration in the condition of the tug. This deterioration was not due to normal depreciation and, so, cannot be said to be attributable to wear and tear. Calore is, therefore, liable for the costs of repair and restoration of the tug Magic.
9. An owner is entitled to its charter hire until the vessel is returned in good condition. An owner has no obligation to accept the vessel in a damaged condition or to subject itself to a repairman's lien by ordering the vessel to be repaired. Cox v. Banks, 50 F. Supp. 871, 873 (E.D. Pa. 1943). In the case at bar, Compass refused to accept the tug because of the poor condition in which she had been returned. Calore is, therefore, liable for the continuing charter rental due from the date of the tug's return until the date of her sale to a third party.
10. Calore also breached other provisions of the charter agreement by failing to pay for insurance and for replenishment of fuel and lube oil, and by making improper deductions from invoices. We find Calore liable for those amounts as well.
11. In a diversity case concerning a cause of action arising under maritime law, the federal admiralty rule concerning pre-judgment interest should be applied. Robinson v. Pocahontas, Inc., 477 F.2d 1048 (1st Cir. 1973). Pre-judgment interest "should be awarded unless there are exceptional circumstances that would make such an award inequitable. [Citations omitted]." Matter of Bankers Trust Co., 658 F.2d 103, 108 (3d Cir. 1981), cert. denied, 456 U.S. 961, 72 L. Ed. 2d 485, 102 S. Ct. 2038 (1982).
12. Exceptional circumstances occur "when the party requesting pre-judgment interest has (1) unreasonably delayed in the prosecution of its claim, (2) made a bad faith estimate of its damages so as to preclude settlement, or (3) not sustained any actual damages . . . ." Dravo Mechling Corp. v. Standard Terminals Inc., 557 F. Supp. 1162, 1167 (W.D. Pa. 1983), aff'd mem., 729 F.2d 1446 (3d Cir. 1984). We find no such exceptional circumstances to exist in the case at bar. Compass is, therefore, entitled to pre-judgment interest.
13. The rate of pre-judgment interest is within the discretion of the court. Matter of Bankers Trust Co., 658 F.2d at 112.
14. "The purpose of pre-judgment interest is to reimburse the claimant for the loss of the use of its investment or its funds from the date of such loss until the date judgment is entered. [Citations omitted]." Dravo Mechling Corp., 557 F. Supp. at 1167 n.11.
15. Compass has requested a rate of six (6%) per cent interest per annum. We find this rate to be reasonable and so allow it from the date of loss until the entry of judgment. The date of loss is the date the vessel was returned.
16. Calore is liable to Compass for damages amounting to $ 82,118.88. Pre-judgment interest on this sum at 6% per annum comes to $ 12,000.34. The total amount due from Calore to Compass is, therefore, $ 94,119.22.
17. The defendant has brought its counterclaim under the admiralty and maritime jurisdiction of the federal courts. See 28 U.S.C.A. § 1333 (West 1966).
18. In every charter agreement, there is an implied warranty on the part of the owner that the vessel is seaworthy. The existence of unseaworthiness must be proven by a preponderance of the evidence. Consolidation Coal Co., 364 F. Supp. at 1074. The counterclaim of Calore, in the instant case, is based upon the alleged unseaworthiness of the tug Magic.
19. The evidence in the instant case indicates that the tug Magic was in seaworthy condition at the time of her delivery to Calore. Calore has failed to sustain its burden of proof on this issue and its counterclaim must be denied.
AND NOW, this 25th day of April, 1989, the court enters a verdict and judgment in favor of the plaintiff Compass Marine Corporation and against the defendant Calore Rigging Company in the amount of $ 94,119.22. The counterclaim of defendant Calore Rigging Company is herewith DENIED.
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